Order in the Court?

On a snowy afternoon late last year, Professors Jamal Greene, Gillian Metzger, Henry Paul Monaghan, and Trevor Morrison gathered for a conversation about the cases, controversies, and conundrums sure to arrive at the Supreme Court during Barack Obama’s presidency. The professors discussed an array of topics ranging from Guantanamo Bay to same-sex marriage, and engaged in some crystal ball–gazing about how the composition of the Court may change over the next four years. Although a dramatic shift in the Court’s liberal-conservative balance of power seems to have become far less likely as a result of Obama’s victory, the professors discussed several specific ways in which the new administration will almost certainly have an impact on the Court. An edited transcript of the conversation, which was moderated by veteran legal affairs reporter Joseph Goldstein, follows.

Goldstein: I’d like to start with the issue of Guantanamo Bay and then open it up from there for some crystal ball–gazing. If you close Guantanamo, as Obama says he intends to, what are some of the legal questions that might land before the Court?

Morrison: In Hamdan, [the Court] said that, on separation of powers grounds, the military commission system the president had established by executive order exceeded his authority. But because of the nature of that holding, it didn’t say much about how individual rights questions might bear in the context of a military commission proceeding. So if the government were to try and prosecute individuals not in an Article III court, the way its attempt to do that might interact with criminal procedure rights familiar to us under the Bill of Rights, or other individual rights provisions, could potentially come to the Court.

If the government detains people without [attempting] to try them in any context, that could [also] bring questions to the Court. In fact, one is already on its way there, in the al-Marri case. The Supreme Court has said things about enemy combatant detention, but it has not given anything like a comprehensive answer. But al-Marri is really the product of Bush administration policies, and may not be reflective of the kinds of cases we’ll see going forward. It’s not at all clear that the Obama administration would adopt policies yielding additional cases of that sort.

Metzger: Do you think that, on al-Marri, it will make a difference what Obama does in terms of possible additional procedural protections for the determination of enemy combatant status? To some extent, one of the things the Obama administration does have in its power is [the ability to] preempt some of the constitutional issues by the regulations they adopt to govern any tribunals they hold or any determinations they make about enemy combatant status, and therefore the authority to hold.

Morrison: I think that’s right. There are opportunities for the Obama administration to make it much less likely that the Court would have to reach a number of ultimate constitutional questions. In the Boumediene case last June, one of the most telling, under-remarked-upon passages in Justice Kennedy’s opinion for the majority comes very near the end, where he says, for over 200 years we’ve gotten by without knowing what the outer boundaries of the government’s war powers are. We might not be able to continue that, he says, going forward, if the war on terror persists—and if, I think he’s suggesting, not very subtly, the executive and legislative branches insist on really pushing the constitutional envelope. I think he’s also suggesting it would be a bad thing if the Court were forced to really clarify the outer boundaries of that constitutional power, because there is so little to go on. The Court’s unsure itself how it would draw that line. And that’s the context in which the Obama administration could make it that the Court doesn’t have to offer final answers, by itself exercising some greater measure of restraint.

Goldstein: What other controversies might provoke the Court to map out, even against its own will, the outer limits of the president’s war powers?

Morrison: If you go beyond detention, it’s possible that the Court might be called upon to address how the Fourth Amendment applies to surveillance without a warrant in pursuit of some national security aims, where the target of the warrant, or at least one of the targets of the surveillance, is a foreign entity. That’s the question the Supreme Court reserved in a case called Keith, which is its only important statement on how the Fourth Amendment interacts with national security surveillance.

Monaghan: I think very few of the issues you’re talking about are ever going to see the light of day at the Supreme Court. The Obama administration is not confrontational. He’s got a majority in both houses [of Congress]. So any legislation he wants to get, he can pass. The Supreme Court is not going to cripple the power of the executive to act swiftly and decisively. The problem of the [Bush] administration was that it wanted to go it alone. He could’ve gotten a lot of [his agenda] through legislation.

Greene: The other important point—and this is a corollary to what [Professor Monaghan is] saying—is that in the Obama administration, the Supreme Court is to the right of both the president and Congress. So it’s not very likely that Obama and Congress are going to conspire to create some sort of Cheney-on-steroids regime that the Supreme Court is going to have to rein in.

Monaghan: One of the important actors in this is the Department of Justice. It’s going to have a very different feel from its predecessor. It’s going to be staffed by people who are critical of claims of unilateral executive power. When they get to Washington, they’ll modify those views because there seems to be a virus inside the executive department. But, nonetheless, they’re committed to a different attitude. I do think one of the issues that will reach the Supreme Court will affect the business community. Because of the change in character on the Court, [with Justices] Roberts and Alito, I think they are going to be more sympathetic to taking up securities cases, and that there will be a diminution, I hope, in their interest in refining the statutes that govern the availability of habeas corpus. So we could see a shift away from, perhaps, constitutional cases toward issues that are important to the business community.

Metzger: In thinking about areas where I see some potential for the Court pushing in a new direction, what about campaign finance and First Amendment? Buckley seems to me to be under siege. Conceivably, you might have a more favorable Congress for more regulation.

Goldstein: How will Obama’s election inform the way the Court thinks about campaign finance reform?

Metzger: [One issue] I think will play a role here is the fact that Obama did not take [federal] funding, and the issues about the ability to garner sufficient funds. To some extent, I think it has changed the wisdom on campaign finance. He was able to generate massive amounts of money outside of the presidential funding system from a broad enough array of campaign donors that the corruption issues are harder to argue. I think it complicates some of the arguments in favor of campaign finance [reform].

Greene: I also think there’s just no political appetite for campaign finance reform in this country. There are so many issues on the table that campaign finance is really at the bottom of everyone’s list and requires way too much political capital to really have any traction in this administration.

Metzger: But whether they might do anything on the advertising front, I don’t know.

Greene: The Supreme Court will push back very hard on that.

Metzger: Yes, exactly. They seem to have no sympathy for regulation there.

Monaghan: There are two models of campaign finance. There’s [Justice Stephen] Breyer, who says this is an administrative law problem: If you’re going to have elections, you’re going to have to regulate them. And then you have people like [Justice Antonin] Scalia who think this is a free speech issue. Justice Thomas, also. And Kennedy. But that lineup is not going to change in our crystal ball.

Morrison: We may all be in agreement that our crystal ball says there is going to be less movement on the Court than is broadly predicted in the media.

Metzger: I think if the crystal ball only goes three years . . . one appointment.

Goldstein: If you could advise Obama on whom to appoint, what names would you float?

Monaghan: Well, we would differ on that. I think that the rest of the group and I are not in sympathy.

Morrison: That means you get to go first, Henry.

Monaghan: I’d appoint another judge—and this isn’t going to happen—like Alito and Roberts. Those are my ideal judges.

Greene: I think we all agree it’s fairly likely that his first appointment will be female. And given the additional qualification that he might want a [racial] minority, there is one female, Hispanic Court of Appeals judge, who is a Democrat, [likely to be considered].

Goldstein: Sonia Sotomayor.

Greene: She’s probably on the short list.

Monaghan: She apparently is on the short list. And she happens to be very able. She’s a hard, hard worker.

Metzger: So far, the one prediction I would have based on Obama’s appointments to date is that clearly he will take . . .

Monaghan: Quality.

Metzger: Yes. He’ll take the demographics into account, but he is not going to appoint somebody to satisfy a particular interest group or audience if he doesn’t feel like the quality is up, particularly on the Court. It’s just not what he’s going to do.

Morrison: The very strong assumption that most people begin with is that it will be a judge. Speaking normatively, I think something is lost when a Court doesn’t have people with experience within the institutions that it is the Court’s business to regulate.

Greene: I think [he will do so] if he gets multiple appointments. But that’s not clear.

Monaghan: One thing I don’t like to see of people appointed to the Court [is] people who are not interested in law. We’ve got people trained as lawyers who go into public administration but are not really interested in law. I don’t mind taking somebody in from the outside, so long as I think that person will be interested. So I’d like to take somebody from a law firm. That isn’t going to happen either, [though] you could take someone like Seth Waxman, who you know is interested in the law.

Goldstein: I’d like to wrap things up by asking what sorts of cases you expect an Obama Civil Rights Division to bring? And what are some issues in civil rights law that may end up before the Court?

Monaghan: A set of cases I expect to see before the Court are disability cases. There’s a lot of movement in the disability world, a lot of rethinking. And I think that will become a greater priority than it has been for the [Bush] administration.

Metzger: The other place I think you’re going to see individual rights challenges involves abortion. The Court, with the Gonzales v. Carhart decision, basically invited as-applied challenges, but also suggested much more legislation [restricting the scope of the abortion right] is possible. As to how the Obama administration responds to that: My guess is that they file a brief at the amicus level probably opposing what they see as more restrictive measures, but aren’t that active on the ground.

Greene: Another civil rights [area] I think it’s important to bring up [is] voter rights and voter suppression, which I think is very much at the top of the agenda for the Obama Justice Department. A lot of the voter ID statutes that were passed in [Voting Rights Act] Section 5 jurisdictions, the Justice Department let go through. I think that’s less likely to happen [in an Obama administration]. And I also think Section 2 [of the Voting Rights Act] might get more litigation than it has in the past several years in terms of voter suppression cases, and maybe even voter ID cases.

Metzger: And in two years, we’ve got a new census. So there will no doubt be redistricting issues coming out of that. My crystal ball says [there will be] at least one case there.

Monaghan: On the Court, there’s not a lot of sympathy for the Voting Rights Act. It’s in a state of recession. I, myself, think that [Section 5] of the act is unconstitutional and can’t be reconciled with other decisions. The Court might weaken that, because the conservative majority will still be there.

Morrison: What do you think about a different issue that’s broadly under civil rights: After Lawrence v. Texas in 2003, there was an explosion in litigation all at the state court level over same-sex marriage. There was a conscious decision made to plead those cases as state constitutional law cases, not federal. The thinking was that if they actually won a case at a state high court, they wanted to insulate it from review by the Supreme Court of the United States. It seems to me that that state strategy has just about run its course—that prospects for winning at the state level are being seriously cut back by passage of constitutional amendments at the state level, which should change the rational litigator’s assessment of the risk . . . [and] should make it more likely that someone starts arguing this as a federal constitutional matter. [If so, is the Court likely to look at the issue in the foreseeable future?]

Metzger: I don’t think [a case will make it to the Supreme Court very soon] on marriage.

Monaghan: The case that might get to the Supreme Court as a federal question is prohibiting adoption [by same-sex couples]. That’s an interesting case.

Metzger: Yes. There’s an 11th Circuit case on that. And you know what else might get [some attention from the Court]? There are some versions that are currently percolating of “don’t ask, don’t tell” challenges.

Goldstein: We are out of time, so that will have to be the last word. Thank you all for your insights and predictions. •